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Supreme Court vacates order staying payment of 42 ex-Barclays employees

THE Supreme Court has thrown out an application by Barclays Bank seeking to stay the Court of Appeal’s decision to dismiss the ex-parte order dated February 8, 2019 granted to the bank staying the execution of the judgment of the Supreme Court which ordered it to pay its former 42 employees their redundancy packages.

In a ruling dated May 16, 2019, Court of Appeal judges Fulgency Chisanga, Chalwe Mchenga and Catherine Makungu threw out the ex-parte order of stay of execution of judgment pending the hearing and determination of an application for leave to file appeal out of time that was granted to the bank.

“The applicants’ advocates in this case have not drawn our attention to any authority supporting their argument that this court has the jurisdiction to grant an extension of time within which to appeal or to stay execution of a judgment that has already been before the Supreme Court,” the judges said.

Barclays Bank (now called ABSA) had applied for a stay of execution of a judgment of the Industrial Relations Court before the Supreme Court seeking a determination on whether a matter dismissed on a technicality by the Supreme Court for failure to obtain leave out of time could be reopened in the Supreme Court by applying for extension of time in which to appeal despite there being no cause of action in the same court following the dismissal of the appeal.

The bank sought a determination on whether it was appropriate for the Court of Appeal to refuse and decline to consider its application for leave to appeal despite its former employees’ motion in objection being incompetent having been taken out under a wrong rule or provision.

Barclays further wanted the court to determine whether the Court of Appeal having determined that the employees’ motion was brought pursuant to a wrong authority, and whether it was competent for the court to proceed to entertain the said motion.

During hearing, Barclays prayed that it be saved from execution of the judgment as it being a financial institution and an important player in the financial system, was likely to be paralysed in its operations and adversely affect customers, stakeholders and employees as much as it would affect the economy.

However, the former employees of the bank Jeremiah Njobvu and 41 others argued that the Court of Appeal did not make any determination on the points of law which they raised to have been brought pursuant to a wrong provision.

The former employees argued that the bank cannot hide behind the veil of being a financial institution to disrespect or disregard judgments of the court and that no evidence has been shown to prove that the recovery of amounts due to the employees would adversely affect its operations, customers, stakeholders, employees and the economy.

In his ruling, Supreme Court judge Mumba Malila SC said the proposed appeal does not present sufficient prospects of eventual success to justify the intervention of the Supreme Court.

“I accordingly consider that the reasons given for the application for leave to appeal are not sufficiently cogent. Leave to appeal is unlikely to be granted,” Judge Malila said.

He further ruled that the application for a stay premised on the expectation that leave would be granted stands on a shaky ground.
“Given the foregoing, I decline to grant the application. The ex-parte order I granted on June 4, 2019 is hereby vacated. I order costs against the applicant (Barclays Bank),” said justice Malila.

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